Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation

The Journal of Legal Analysis, Forthcoming, U of Chicago, Public Law Working Paper No. 280, Boston Univ. School of Law Working Paper No. 09-50

Number of pages: 70Posted: 24 Oct 2009

You are currently viewing this paper

Downloads 267

Date Written: October 22, 2009

Abstract

Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.

Farnsworth, Ward and Guzior, Dustin F. and Malani, Anup, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation (October 22, 2009). The Journal of Legal Analysis, Forthcoming; U of Chicago, Public Law Working Paper No. 280; Boston Univ. School of Law Working Paper No. 09-50. Available at SSRN: https://ssrn.com/abstract=1492907 or http://dx.doi.org/10.2139/ssrn.1492907